County Court Claim Defence - Feedback appreciated

blogon5

Good afternoon all,

A forum newbie here. Though I would note I have actually been reading various threads and of course the newbie sticky thread, in preperation for this post.

I hope I'm not unnecessarily clogging the board up further, because I have drafted a claim defence which needs to be submitted by Friday (23/08) and I understand you helpful people have indicated previously that you invite people to share these so that constructive feedback and improvements can be suggested.

I think it is suitably redacted, I've not even named the parking company.

So, please, could you all take a look and let me know your thoughts on how this looks?

blogon5

In the County Court Business Centre
Claim No: xxx
Between
Egg heads R US (Claimant)

-and-

x (Defendant)

____________
DEFENCE
____________



1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle registration number xx on the material date. The facts of the matter are the Defendant was attending a job interview in close proximity to the location where the vehicle was parked. The ‘land’ on which the vehicle was parked, was in appearance to the Defendant, a derelict and empty Industrial Unit which had several empty parking bays. Some parking bays were occupied by other vehicles, which on inspection were not displaying any permit or ticket in their respective windows. The Defendant did not see any signage or cause to consider that parking temporarily in this parking bay whilst attending a job interview, was in any way going to be a contravention or cause disruption or loss to any other third party.

3.It is denied that the Defendant entered into any contract whether express, implied or by conduct, and it is also therefore denied that the Defendant breached any of the claimants purported contractual terms and conditions that could lead to a claim in law.

4. It is disputed that the claimants purported terms and conditions upon entering private land, were clearly displayed at the entrance, as is indicated in the particulars of claim.
The Xxx Industrial Estate, the land on which the Defendant's vehicle was parked, has two main entrances to vehicles. The entrance that the Defendant used to enter this area was via XX. At this entrance there is no signage whatsoever to alert a motorist that they are entering private land, nor of any parking restrictions.

5. In regard to Xxx of this Industrial Estate, where the Defendant’s vehicle was parked, this particular unit was completely vacant at the time the alleged contravention took place. There is no signage at the entrance to the parking area of this particular unit either, and no road or kerbside markings to indicate any form of parking restrictions.

5.1. The Defendant refutes the claim that signage in this Industrial Estate in general, nor at Xxx was clearly displayed in prominent locations. The Defendant notes that visibility of any signage, is poor, and where evident, is exceptionally small, both in terms of the size of the signs and also the font size of the terms that is on those signs. Any such terms or conditions would therefore be extremely difficult to be seen by passing motorists. The Defendant did not recall seeing any prominent signage at the time of the alleged contravention.

5.2. The nearest signage to where the alleged contravention took place is approximately 20m away on a solitary A5 sized sign on the unit wall of Xxx. The text upon this is so small as to be impossible to notice or read from where the Defendants vehicle was approximately parked. It is not known whether this sign was actually there at the time of the alleged contravention. The Defendant has not been made privy to any evidence or images there may be of his vehicle at the location to confirm this, despite having submitted a Subject Access Request to the claimant for such information on XXX. As yet the Defendant still awaits a reply to this.

5.3. The Defendant further recalls that other vehicles were also parked in some spaces within Xxx on the date of the alleged contravention. As noted the Unit itself was not occupied by any business at the time. These vehicles that were parked did not display any parking permits or tickets within their windows. This would have further allayed any concerns the Defendant had about parking there. Further, assuming the aforementioned sign nearest to Xxx was there at the time, the view of this from the area where the Defendant’s vehicle was approximately parked would have been further obstructed by the other vehicles located in parking spaces within the unit at the time.

5.4. It is noted that the claimant is a member of the International Parking Community (IPC). Having reviewed the IPC’s code of practice, Part E, Schedule 1 on Entrance signs states that entrance signs should: (a) ‘Make it clear that the motorist is entering onto private land’, and (b) ‘Refer the motorist to the signs within the car park which display the full terms and conditions’. Part E also states that ‘signs should, where practicable, be placed at the entrance to a site’. As already indicated, both on the date of the alleged contravention, and still at the time of writing this defence, there is no such signage at the entrance to the land that the Defendant used.

5.5. Part E of the IPC code of practice further advises that: ‘The size of text on a sign will be determined by a number of factors such as the position of it, to whom it is aimed and the information that it needs to convey. Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign’.
On the subject of ‘Other signs’ within this part of the code of practice it states:
‘You (The Operator) must adequately display any signs intended to form the basis of contract between the creditor and the driver. Such signs must;
- Identify yourself as ‘the Creditor’;
- Have clear and intelligible wording and be designed such that it is clear to the reasonable driver that he is entering into a contract with the creditor or committing a trespass as the case may be;
- Contain text appropriate to the position of the sign and the relative position of the person who it is aimed at.

5.6. As indicated the position and size of the signage within Xxx of the Xxx Industrial Estate renders it incapable of being clearly seen, furthermore the size of the text on the signs is of a size which means it could not be ‘easily read’, and therefore the claimant is not adherent to the sections of the code of practice referenced at 5.5.

5.7. The signage that is on this land does not identify the Claimant as ‘the Creditor’ as required by the IPC code of practice.

For the reasons above, the signage was not seen by the Driver and therefore no contract can be deemed to exist or have been entered into.

6. It is denied that “the Defendant has failed to settle the outstanding liability” as stated in the Claimant’s particulars. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver did not see or accept the terms and conditions the claimant says they did and therefore the Defendant was never aware of an outstanding liability in the first place.

7.1 No prior notification or correspondence about the matter at hand has been received by the Defendant from the claimant prior to the County Court Claim form being received on XX. It is noted under the Protection of Freedoms Act 2012, in regard to the recovery of parking charges, a Creditor is obliged to issue a notice at the time of the alleged contravention, first by assigning such a notice to the vehicle whilst it is still on the land. The Defendant did not recall such a notice being affixed to the vehicle on the date of the alleged contravention, and further has not seen any evidence to suggest this occurred.

7.2Following this, a further ‘Notice to Keeper’ should be issued in writing advising the keeper of the vehicle of the alleged contravention, as well as providing a route of appeal against this. It is apparent that the claimant has been able to use the vehicle’s registration details to retain the keeper’s name and address from the DVLA in support of pursuing this claim, however it is not clear whether the claimant ever used these details to send a notice to keeper first. Again, the Defendant never received any such correspondence to the best of their knowledge; therefore, it would appear the claimant has not adhered to POFA 2012 nor the IPC code of practice in this respect.

To repeat, a subject access request requesting copies of evidence of any such prior correspondence / notices and related information held by the claimant about the Defendant has been submitted in this respect, though the Defendant has yet to receive any information at the time this defence is being submitted. The Defendant would respectively request that they reserve the right to adjust their defence once they have been made privy to the information the Claimant holds about the defendant in relation to this matter.

8.1. The amount claimed by the claimant is £160.00, plus the £25.00 court fee. Having revisited the land in proximity to the alleged contravention and having been able to review the small and limited signage that is there, it states that the claimant’s ‘parking charge’ is £100.00. Whilst the Defendant will argue at point 9 that this charge in itself is unfair, the amount that is being claimed for includes an additional £60.00 on top of this, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

8.2 It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £60.00 to the parking charge and that those sums formed part of the terms and conditions in the first instance.

9.1 The parking charge of £100.00 as referred to in point 8, is unfair and appears to be penalising the consumer, in this case the Defendant disproportionately. The ‘Unfair Terms in Consumer Contracts Regulations 1999’ defines a term of a contract as being considered unfair in the following parts:

5.– (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the customer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

9.2. Xxx of the Xxx Industrial Estate, at the time of the alleged contravention, was an empty unit with no business operating there. Therefore, the claimant is invited to clarify how their parking charge of £100.00 has been calculated to be; commercially justifiable or a proportionate sum in compensation, or necessary to perform parking management of a unit which is not being used. The Defendant argues this charge should be void to the extent that it amounts to a penalty under English common law. The Office of Fair Trading has issued guidance on how this legislation should be interpreted, which supports this view. If a contractual term/s of a contract are proven to be unfair, then point 8–(1) of the ‘Unfair Terms in Consumer Contracts Regulations 1999’ states the terms shall not be binding on the consumer.

10. The Claimant indicates that they manage the property. The Claimant is not therefore the Land-owner. Neither has it claimed to be an Agent or creditor. The Defendant has the reasonable belief that it is merely a contractor. The Claimant has not therefore explained what authority it has to bring this claim. The proper claimant would be the landowner and/ or leaseholder of Xxx at the time of the alleged contravention.

11. A contract with the lawful occupier of the land is absent and has not been produced by the claimant, nor a chain of contracts showing authorisation stemming from the lawful occupier of the land to issue enforcement proceedings. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to pursue such claims or bring this case.


12. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety. The Claimant is in breach of its industry body’s code of practice for parking regulation, as the signs at the time of the alleged parking contravention were insufficient in terms of their location, numbers, distribution, wording and size to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the International Parking Community’s Accredited Operators Scheme, to which the Claimant is a signatory.

Statement of Truth:
I believe that the facts stated in this Defence are true.

Name

Signature

Date

The_Deep

Nine times out of ten these tickets are scams so consider complaining to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

nosferatu1001

In just asking us to read a defence its hard to know if youve included everything you should have done, as we dont kow the back story. You might even have included items you cant do.

A short and I mean SHORT precis of what happened etc always helps.

nosferatu1001

I dont know how POFA has any relevance where the driver is identified.

blogon5

nosferatu1001 wrote: »

In just asking us to read a defence its hard to know if youve included everything you should have done, as we dont kow the back story. You might even have included items you cant do.

A short and I mean SHORT precis of what happened etc always helps.

Fair enough and understood!

Basically I was attending a job interview in the city centre. This Industrial Estate is actually made up of more empty units than there are ones with businesses in, and is close to where the company was based. I'd driven by it before and noticed it was close to where I was going and, as per some Units being empty AND already having cars parked within which were not displaying any tickets/ permits, I thought it was a safe bet to leave it there. I was also in a slight hurry as was running slightly late.

I genuinely didn't have a ticket on the windshield when I returned as far as I can remember (it was last winter).

I also don't recall having received any letters about it whatsoever. Just a claim form popping through the door the other week which scared the life out of me. I don't know if other letters were ever sent, and if so whether the parking company would have used standard postage or had it signed for? I'm fearful it might appear that I ignored letters when as stated in my defence I don't recall having received any.

I genuinely don't know what info this company has on me. I read these forums and noted that I should submit a SAR which I have done, however I've yet to receive any information and doubt that I will before my defence is due to go in. I think day 33 is Friday (I acknowledged the claim already before day 14).

As the defence shows, I've noted that I've not been made aware of this alleged contravention, and regarding the parking which I do remember doing, having done the research I've focused on signage and questioned whether the company have any authority to pursue such costs.

blogon5

nosferatu1001 wrote: »

I dont know how POFA has any relevance where the driver is identified.

Cheers. In truth I wasn't either, I think I'd cut and pasted stuff in from someone else's defence, but thought would leave in as it does refer to an obligation for the agent to issue a notice to the keeper about the contravention? Which I'm stating was never received.

Can take out though. I just wanted to refer to the fact that the parking company don't appear to have done what they should have done in informing me about this, and giving me a chance to appeal it, BEFORE submitting a court claim.

KeithP

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

blogon5

Hi Keith, yes Northampton Court and was issued on 22 July.

Cheers.

KeithP

blogon5 wrote: »

Hi Keith, yes Northampton Court and was issued on 22 July.

I'll assume you did the Acknowledgement of Service before 12th August.


With a Claim Issue Date of 22nd July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 27th August 2019 to file your Defence.

Not very long, but a few days more than you thought.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

blogon5

Thanks very much Keith, I wasn't sure what the specific date was to get it back, and am paranoid about missing it having spent a fair bit of time reading up on defences on here.

What do you make of what I've said? Do you see a chance? I thought the lack of any signage at all at the entrance of this private land (which I have since verified and took pictures of) was a good argument.

Am slightly worried that I've not seen any information that the parking company have on me whatsoever. Am also worried whether if something ever was attached to my car whether it was removed before I returned and it then appears as though I've ignored it? Will Judges tend to take a dim view on these sorts of things even though there can be a legitimate chance that notices can be removed/ fall off a car?

Would it be worth ringing them? I'm sure I saw some advice given on this forum or possibly parking cowboys about not bothering to engage with them (aside from submitting a SAR which I have done).